Overtime

Am I being Fairly Compensated for my Labor?

As an employee, you have certain rights that your employer may not inform you of. That includes the laws surrounding overtime and how compensation should be handled if you work more than a certain number of hours per day, or per week. At Miller and Wilmers APC, we understand the laws of our state, and have worked the same Southern California jobs you have, where employers have blatantly taken advantage of you and your rights. Little cultural saying like "be a team player" or "if you could knock this our on your way out" have resulted in employees willingly working off the clock, benefitting only the employer. If you feel you are being taken advantage of by your employer, our team of highly skilled overtime lawyers in Southern California are prepared to fight on your behalf.

Employee Categories

The first step in determining who should be receiving overtime pay is identifying whether they are an exempt or nonexempt employee. Employers will usually tell employees that if they are paid a salary, then they are exempt from being paid overtime if they work more than 40 hours a week, or more than 8 hours in a day. In truth, exempt employees must meet a certain salary threshold and must perform the duties of a truly exempt employee such as an executive, professional, or administrator. If you are considered nonexempt, under most circumstances you should receive overtime pay if you work more than 40 hours a week, or 8 hours in day, and for your first 8 hours on the clock on your seventh consecutive day of work.

If attempting to determine whether you actually qualify for overtime, and at what rate, check out California's IWC Wage Orders, which are quick 2-page documents that spell out the rules regarding your employment based on the industry you work in. Some industries have different exceptions or rules than others, so it is important to understand where it is you stand as it realtes to the wage orders.

Overtime Pay

When an employee is legally eligible for overtime, they are supposed to be paid at their "regular rate of pay", which is not always a rate of one and a half of their hourly wage. For example, if you make $20 an hour, for each hour of overtime you should earn $30 based on the typical understand of overtime pay. However, if you receive certain non-discretionary payments alongside your base wages, your overtime may be affected and overtime should in fact be much greater than one and a half times your base wages. There are exceptions to this, which one of our skilled attorneys can help you to identify.

Independent Contractors versus Employees

Many employers will evade paying overtime by classifying their workers as “independent contractors” when in reality, they are nonexempt employees. When you work with a skilled legal professional, he or she can determine if in fact you are actually an employee and not an independent contractor. California generally follows a strict test that favors the "employee" status, but effective lobbying by industry interests have carved our several exceptions to the rules. It is for this reason that it is important to speak with an expert in California labor and employment law when determining whether or not you have a claim.

Some of the criteria that our legal team will examine include the following:

How much the employer has control over the worker in terms of how they perform their job, when they work, how they dress, etc.
How much of an opportunity the worker has to gain income or lose it as determined by the employer.
How permanent the relationship is between the worker and the employer. Contract workers have a specific date by which their contract will end, and though the contract can be extended, it is not the same as hiring a permanent employee.
If the nature of your work is the same as the nature of the work of the employer.
and other considerations.

Double Time

In California, Hourly Non-exempt employees can qualify for "Double Time," for hours worked in excess of 12 in a day, or all hours over 8 hours on the seventh consecutive day of work. Again, the phrase double time can be misleading as it is double your "regular rate of pay" and not just your straight time wages.

Frequently Asked Questions

Who is Owed Overtime Pay?

Although there are exceptions, non-exempt employees are usually owed overtime pay. If you are paid by the hour for the work that you do, and you are working more than 40 hours every week, more than 8 hours in a day, or for your first 8 hours of work on the seventh consecutive day of work, you are owed overtime and you are likely a non-exempt employee and may very well be entitled to overtime pay.

How Much Should I be Compensated for Overtime.

Overtime is calculated based on a 40-hour work week, 8 hour work day, and six days of work in a week, and the rate of pay for overtime hours (i.e., hours worked over 40) is typically 1.5 times an employee's hourly rate. Keep in mind that your overtime pay rate may be more than 1.5 times your hourly rate if you receive bonuses, commissions, or other compensation in addition to your hourly wage. This is known as the "regular rate of pay.

How Much Overtime can I claim?

The Fair Labor Standards Act (FLSA) allows you to recapture of up to 2 years of overtime pay. In California, you can reach back to three years of pay, and in some cases, up to four years of pay. In California, you are entitled to your attorney's fees paid by the employer when violations ar foudn.

How Do I Know If I am Entitled to Overtime Pay?

In determining whether you are owed overtime, how you are currently paid and your title at work are not necessarily conclusive. Although certain job positions may almost always be non-exempt and entitled to overtime pay (e.g., most hourly positions, phone sales, administrative assistant positions, most paralegal positions), whether you are exempt or not is largely dependent on the actual duties you perform at your job every day.

If you are an hourly employee, your employer may owe you overtime pay if:

You are working more than 40 hours each week but are paid the same amount of money weekly no matter how many hours you work;
You are working more than 8 hours in a day but are paid the same amount of money weekly no matter how many hours you work;;
Your employer does not document or pay you for the hours he/she asks you to come in early, stay late, or work through lunch;
Your employer asks you to do any kind of work that is unpaid or “off the clock.”

Are Salaried Employees Always Exempt from Overtime?

Absolutely Not. In Fact, Employers often use "salary" basis to avoid paying overtime to employees who qualify for overtime and cannot qualify as exempt. Just as there are certain positions that are almost always non-exempt and entitled to overtime, there are also certain positions that are almost always exempt from overtime pay (e.g., CDL licensed drivers who travel across interstate lines, certain outside sales positions, highly compensated positions, or salaried managerial positions with true managerial duties).

Remember, however, that titles, such as “manager” or “supervisor,” or labels, such as “exempt,” do not necessarily determine whether you are owed overtime. In many cases, titles and labels are applied for the very purpose of avoiding paying overtime to non-exempt employees. Therefore, even if you are a salaried employee making the same amount of pay each week, you may be misclassified and entitled to overtime if your job duties are duties normally performed by non-exempt employees.

For example, if you have a managerial title and you are working more than 40 hours each week, you may still be owed overtime pay if you do not truly supervise 2 or more employees, if you perform the same work as the employees you supervise, or if you cannot hire, fire or make other managerial decisions. Additionally, even if you actually perform genuine managerial and supervisory duties, you may still be non-exempt and owed overtime pay if you are paid by the hour rather than salaried.